Michael Jerome Carter appeals the trial court’s denial of his amended motion for new trial after a jury convicted him on three counts of child molestation and two counts of aggravated sexual battery. Because we find that the State failed to establish venue as to two of the three counts of child molestation (Counts II and III) and both counts of sexual battery (Counts I and IV), we reverse as to those counts. However, we affirm Carter’s conviction on the remaining count of child molestation (Count V) for the reasons set forth below.
Viewed in the light most favorable to the verdict,
After A. W.’s mother notified A. W.’s father about the note, he pulled A. W. out of school and notified the police. Although A. W. was reluctant to talk to her father about the incidents involving Carter, she described them for her grandmother, her father’s mother. A. W. later told a forensic interviewer about these incidents, and the tape of that interview was played at trial. A. W. also testified to these events at trial.
1. Carter argues that the evidence was insufficient to support his convictions for child molestation and aggravated sexual battery.
When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
(Citation and punctuation omitted; emphasis in original.) Knight v. State,
A person commits the offense of child molestation when he or she “[d] oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person . . . .” OCGA § 16-6-4 (a) (1). “A person commits the offense of aggravated sexual battery when he or she intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.” OCGA § 16-6-22.2 (b).
2. Carter also asserts that the State failed to establish the venue of these crimes. ‘We have held that venue is a jurisdictional fact and an essential element that the State must prove beyond a reasonable doubt for every crime.” (Citations omitted.) Lanham v. State,
A. W. testified that the incidents at issue happened both at Carter’s house and her mother’s house. A. W.’s father testified that A. W.’s mother moved frequently and that she had moved approximately three times within a year. A. W. told the forensic interviewer in June 2010 that she moved in with her father after he learned of the last incident. Before moving in with her father, she had lived with her mother and brother in a townhouse, but they had “just moved” there. One of the detectives stated that in investigating A. W.’s allegations, he visited the mother at her home. The prosecutor asked him to identify the county in which the mother’s home was located, and he indicated that it was in Clayton County. The State presented no evidence, however, regarding the mother’s prior residences. And although Carter listed his address as being in Jonesboro in his recorded interview with police, which was played at trial, the State presented no evidence establishing that the entire city of Jonesboro lies within Clayton County. It is well established that “proving that a crime took place within a city without also proving that the city is entirely within a county does not establish venue.” (Footnote omitted.) Graham v. State,
the fact that the responding officers were employed by the [Clayton County Police Department] cannot serve as the exclusive proof that the crimes occurred in that county. As [this Court has] previously stated, the investigating officers’ county of employment does not, in and of itself, constitute sufficient proof of venue to meet the beyond a reasonable doubt standard.
(Punctuation and footnotes omitted.) Mock,
Thus, the State proved that the mother’s townhouse was located in Clayton County but failed to prove that any of the mother’s prior residences or Carter’s residence were also in that county. The evidence supported a reasonable
3. Carter also contends that the trial court erred in qualifying the forensic interviewer, Rebecca Kouns, as an expert in the field of child forensic interviews. “Acceptance or rejection of the qualifications of a proposed expert witness is within the sound discretion of the trial judge and will not be disturbed on appeal absent manifest abuse.” (Footnote omitted.) Bridges v. State,
An expert witness is anyone who, through training, education, skill, or experience, has particular knowledge that the average juror would not possess concerning questions of science, skill, trade, or the like. An expert witness may render an opinion within his area of expertise after the proper qualifications have been proven to the trial court.
(Footnotes omitted.) Fielding v. State,
Kouns testified that she was the program manager at Rainbow House, Incorporated, a nonprofit “emergency shelter for children, a runaway and homeless youth program and a child advocacy center.” In her capacity as program manager, she oversaw the advocacy center and ensured compliance with applicable standards, but she spent 80 percent of her professional time conducting forensic interviews. In her ten years of experience, Kouns had conducted almost 350 forensic interviews. At the beginning of her career, Kouns underwent 40 hours of training in the field of forensic interviews. To maintain accreditation, Kouns was required to undergo monthly peer reviews, which involved additional training and required her to read journals and publications in the field; she was also required to complete 24 hours of additional training per year. Although Kouns had not earned a college degree, no degree or board certification is required for forensic interviewers in Georgia. At the time of Carter’s trial, Kouns had been qualified as an expert witness in five prior trials.
Given Kouns’ training and experience, we find no abuse of discretion in the trial court’s qualification of Kouns as an expert witness in the area of forensic interviews. See Hubert v. State,
4. Carter further asserts that he received ineffective assistance of trial counsel because his attorney (1) failed to call an expert witness on behalf of the defense on the issue of forensic interviewing and (2) failed to object to what he contends was improper bolstering by Kouns.
In considering the trial court’s ruling on a claim of ineffective assistance of counsel, this Court accepts “the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation
[t]he two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington,466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.
(Citation and punctuation omitted.) Bruce v. State,
(a) Carter asserts that his trial counsel was ineffective in failing to call an expert witness to testify as to the flaws in Kouns’ forensic interview of A. W. In support of this claim, Carter’s motion counsel presented his own expert at the hearing on the motion for new trial. The expert questioned the methodology employed by Kouns and her failure to follow up on responses by A. W. that may have suggested she was motivated to lie about Carter because she disliked him and/or wanted to live with her father.
But Carter’s trial counsel testified that he made the strategic decision not to call an expert in this case based on his consideration of the victim’s age, the facts of the case and the forensic interview itself, with some small consideration given to the financial resources of Carter’s family. The attorney had won a child molestation case a few months before Carter’s trial without the benefit of an expert, and based upon his 40 years of experience practicing law and his familiarity with Clayton County jurors, he did not think that the facts of Carter’s case warranted expert testimony. He viewed the primary issue with the forensic interview as coming down “to suggestibility or bolstering the testimony,” which he addressed through cross-examination and argument. He did not think an expert was needed to present the defense. He also dealt with the issue of A. W.’s dislike of Carter and her possible motive for fabrication, which he saw as “a core piece of the defense,” in the same manner. He viewed these issues as a matter of common sense for the jury, who “can determine whether it looks like [forensic interviewers are] bolstering or they’re leading or whatever else.”
The trial court concluded that Carter failed to carry his burden of establishing deficient performance because the evidence demonstrated that Carter’s trial attorney made the decision not to call an expert based upon strategy and trial tactics. We agree. Although Carter’s current counsel would have relied upon expert testimony to present his defense, his trial counsel presented a similar defense through cross-examination and argument.
[Such t]rial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that appellant and his present counsel disagree with the decisions made by trial counsel does not require a finding that [Carter’s] original representation was inadequate.
(Citation, punctuation and footnote omitted.) Hazelrigs v. State,
(b) Carter also asserts that his trial counsel was deficient in failing to object to the State’s questions asking Kouns to testify as to A. W.’s veracity. Carter takes issue with the following exchange during the State’s direct examination of Kouns:
Q. Now, Ms. Kouns, [A. W] corrected you a few times during the course of the interview, did she not?
A. Yes, ma’am.
Q. Okay. Is that — what • — • does that tell you anything in your training and your experience?
A. That’s actually consistent with a child who is • — • with a child who’s consistent with their story and —
Carter is correct that Georgia law precludes a witness from testifying as to another witness’s credibility:
It is true that in Georgia, the credibility of a witness is to be determined by the jury, and the credibility of a victim may
not be bolstered by the testimony of another witness. Thus, a witness may not give an opinion as to whether the victim is telling the truth. Furthermore, Georgia law generally precludes a witness from testifying as to his or her opinion regarding an ultimate issue in the case because to do so would invade the province of the jury.
(Footnote omitted.) Canty v. State,
Moreover, Carter bore the burden on his motion for new trial of showing his trial counsel’s deficiency, and his motion counsel never questioned the trial attorney about why he failed to object to this evidence. Thus, he made no affirmative showing that his trial counsel’s failure to object demonstrated inadequate performance instead of a strategic decision. The presumption of reasonable trial strategy is extremely difficult to overcome in the absence of such evidence. See Boykin v. State,
Accordingly, we affirm the trial court’s denial of Carter’s claims of ineffective assistance of counsel.
Judgment affirmed in part and reversed in part.
Notes
See Jackson v. Virginia,
Moreover, we note that Carter’s trial counsel did not object to Kouns’ qualification as an expert witness. Instead, he stated, “The standard for what is an expert is almost non-existent in Georgia courts. The jury will decide if they believe she is an expert.”